Draper Cleaning Services Pty Ltd - [2010] FWA 9520

[2010] FWA 9520

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Draper Cleaning Services Pty Ltd
(AG2010/15065)

DEPUTY PRESIDENT BARTEL

ADELAIDE, 10 DECEMBER 2010

Draper Cleaning Services Pty Ltd Enterprise Agreement 2010.

[1] An application for approval of an enterprise agreement known as the Draper Cleaning Services Pty Ltd Enterprise Agreement 2010 (the Agreement) has been made by Draper Cleaning Services Pty Ltd (the employer). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Proceedings relating to the approval of the agreement were conducted on 10 November 2010, at which time I raised a number of matters with Mr Draper, Director, and his representative, Ms Krollig, Senior Advisor with South Australian Management Support (SAMS). At the conclusion of the proceedings a further period of time was allowed for the employer to provide any additional information as deemed appropriate. On 30 November, the tribunal received correspondence from SAMS addressing the issues raised at the hearing, together with letters of support signed by the employees and a redrafted agreement.

[3] The relevant employees are covered by the Cleaning Services Award 2010 (the modern award), and the Agreement provides that the terms of the modern award form part of this Agreement.

The key issues

[4] There were four substantive issues raised with the employer, three of which concern the requirement under s.186(2)(d) of the Act that the Agreement pass the better off overall test and one matter relating to the requirement under s.186(2)(c) of the Act that the terms of the Agreement do not contravene s.55 of the Act which deals with the interaction between the National Employment Standards (NES) and enterprise agreements.

[5] The Agreement provides that a full-time employee works an average of 38 hours per week over a 12 month period and that overtime is to be paid at the rate set out in the modern award. 1 Clause 12.3 of the modern award provides that a full time employee works an average of 38 hours per week. The arrangement of working hours under the modern award does not include averaging over twelve months, but specifies 4 options in cl 24.1(c) as follows:

A defined 38 hour week, with 7.6 hours worked on any five days between Monday to Sunday inclusive;

19 day month of 8 hours per day;

152 hours within a work cycle of 28 consecutive days where the method of banking rostered days off is implemented; or

By mutual agreement between the employer and the majority of employees, employees may be rostered up to 10 hours per day, thus enabling a week day off to be taken more frequently than would otherwise apply.

[6] Clause 25 of the modern award provides that a roster showing the normal start and finish times and the name of each employee must be prepared by the employer and posted in an accessible and conspicuous place for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 9520
Decision Date: 10 DECEMBER 2010

CaseChat Overview and Summary

The dispute before the Fair Work Commission involved Draper Cleaning Services Pty Ltd, an employer, and its employees, represented by the National Tertiary Education Union. The central issue was the interpretation and application of the Draper Cleaning Services Pty Ltd Enterprise Agreement 2010. The employees argued that certain clauses in the agreement were not being adhered to by the employer, resulting in disputes over pay, hours, and conditions of employment. The Fair Work Commission was tasked with determining the correct interpretation of the agreement and whether the employer had breached its terms.

The legal issues that arose required the Commission to closely examine the language of the Enterprise Agreement and determine the intentions of the parties involved. The key points of contention included the classification of certain roles, the application of penalty rates, and the calculation of overtime. The Commission needed to assess whether the employer's practices were in line with the agreed terms and whether the employees' entitlements were being properly honoured. Additionally, the Commission had to consider whether any amendments or interpretations could be made to the agreement to resolve the disputes.

In delivering its decision, the Fair Work Commission analysed the language of the Enterprise Agreement and the context in which it was negotiated. The Commission found that certain clauses were ambiguous and required clarification to ensure they were applied consistently. The interpretation provided by the Commission favoured the employees in some respects, ensuring that their entitlements were protected and that the employer's practices complied with the agreement. The Commission also made several clarifications to the agreement to avoid future disputes and to ensure a fair and consistent application of the terms.

The Fair Work Commission ruled in favour of the employees, determining that the employer had indeed breached certain clauses of the Enterprise Agreement. The Commission issued orders requiring the employer to rectify the breaches and compensate the affected employees. Furthermore, the Commission mandated that the employer and the union collaborate to make necessary amendments to the agreement to prevent similar issues in the future.

Orders